Armed but not so dangerous: The hidden ‘victims’ of zero-tolerance firearms laws

As politicians consider tougher mandatory minimum sentences for firearms possession, with legislation going before Parliament this week, the Cayman Compass investigates the hidden challenges of zero-tolerance gun laws.

A costly mistake

When Eddie Ebanks found a gun in a plastic bag on the beach near Barkers, he admits he made a mistake.

He picked up the weapon and took it home.

Ebanks claims he intended to hand it into the police, but his son became ill and he had to take him to the hospital. Before he got a chance to report the find, his home had been raided and he was charged with unlawful possession of a firearm.

He says he figured the weapon was faulty and had been thrown away. He had no plans to use it and was unaware of whether it even worked or not.

Sceptical readers may doubt his story. But it is not something that detectives or prosecutors ever had to put to the test in a court proceeding.

Possession of a firearm is a ‘strict liability’ offence and carries a mandatory minimum sentence of seven years, with a guilty plea, or 10 years if the offence is denied and proven after a trial. In other words, the circumstances don’t matter.

“All they have to prove is it was in your possession. They don’t care about the circumstances,” he said in an interview with the Cayman Compass from Northward Prison.

“I was advised by my lawyer to plead guilty, otherwise I would get 10 years.”

If he could have spoken in his defence, Ebanks would have told the court that he was a father in his 40s. At the time of his arrest, he had not been in trouble with the police for almost two decades. He was earning more than $4,000 a month as a vice president of operations for a logistics company, and supporting his wife and child, who was 3 when he went into prison.

“I am going to miss the most important years of my son’s life. He is going to grow up without his father,” he said.

“I can’t put it all on the system. It was my responsibility to turn in the weapon, but I think the punishment is too much. There was no opportunity for me to say ‘I made a mistake’ and try to make amends. It was straight to jail.”

Whether people believe his story or not, Ebanks suggests more flexibility – not less – is needed for judges to consider each case on its merits.

Harsher penalties coming

Lawmakers are going in the opposite direction. The shooting of seven people during a football match at the Ed Bush Stadium earlier this year prompted promises to get tough on gun crime.

New amendments to the firearms law will mean there is even less discretion in such cases along with harsher penalties.

A draft bill to be considered by Parliament next week increases the mandatory minimum sentence to 15 years for possession of a firearm or 10 years with a guilty plea. It also alters a clause that gave the court complete discretion over sentencing in cases where a judge decides there are ‘exceptional circumstances’. In those cases, if the amendment is passed, offenders will still be subject to a 12-year minimum sentence or eight years with a guilty plea.

Amelia Fosuhene, a prominent defence lawyer in the Cayman Islands, acknowledged such statutes were part and parcel of the legal system.

But she is concerned that the changes will further restrict the court’s ability to be flexible.

She recalled the case of a private pilot who flew in from the US, cleared customs and security on both sides with a weapon he had accidentally left in his bag, only for it to be uncovered as he passed through security, still unaware of its presence, on his departure from Cayman.

In that case, she said, he was exempted from the mandatory minimum after a judge agreed to treat his case as an exceptional circumstance.

While there has always been a degree of flexibility towards the honest mistakes of visitors arriving from the US, where gun ownership is commonplace, it is comparatively rare for Cayman Islands residents to get the benefit of such leniency.

The problem with the ‘exceptional circumstances’ clause, says Fosuhene, is it is really all or nothing. “If the judge doesn’t believe you, you are in for a massive jail term.”

That’s a scenario that could get worse with the proposed amendments. Once charged, the circumstances would no longer matter – an eight-year jail term would be the minimum, even with a good excuse.

While politicians and the community might want to show ‘zero tolerance’ for gun crime, there are always exceptions.

Case files: Gun in a tool bag

Jerry Archer pleaded guilty to possession of a gun that he had found at the bottom of a tool bag inherited from his stepfather. Archer, 41, is the stepson of notorious gang member Carlos Renton Russell, known as ‘Screechy’, who served time for manslaughter after killing another man in an infamous gang shooting at Cayman Islands Hospital.

He died in 2021, apparently having gone straight in his later years after getting out of prison.

Archer told police he had indirectly and unknowingly inherited the weapon and because of his stepfather’s history, been reluctant to hand it in, in case it was linked to a crime which he could be blamed for. He said he had resolved to wait for a gun amnesty and turn it in then.

His lawyer Prathna Bodden argued in court that Archer, who is of good character with no prior convictions, should not have to serve the full seven-year minimum sentence because he had never intended to acquire the gun or to use it. The ballistics record showed the 5mm handgun had been acquired in the US decades earlier and had not been used in any crime, according to reports from the hearing.

Nonetheless, Justice Cheryll Richards indicated in her sentencing judgment that while there was mitigation, there was nothing exceptional about the offence or offender to justify a reduction in the minimum sentence of seven years.

Case files: Weapon forced on unwitting bystander

Ashley Terry and Sean Dunbar were celebrating their engagement at the Everglo Bar in Bodden Town in 2016 when, as the court later heard, they were sucked into the “unwilling and unexpected” possession of a 9mm handgun.

According to court documents, Jose Sanchez was found in possession of the weapon when he was searched by a security guard as he tried to enter the bar.

As police descended on the location, court records show he made three unsuccessful attempts to force the pistol on Dunbar, who “physically and verbally withstood” his “determined efforts” to offload the gun, before he turned to the unsuspecting Terry and “pushed it under her blouse or skirt before she even knew what was happening or even knew that it was a firearm”.

She reacted with “shock, terror and complete confusion”. The court heard she had placed the weapon on the floor near a vehicle, at which point Dunbar had picked it up and taken it from the scene in an effort to avoid his partner being implicated in a possession offence.

Nonetheless, police arrested and charged both Dunbar and Terry, as well as Sanchez, in connection with the incident.

A judge later decided that Terry, a young mother of three with no previous convictions, should serve a community sentence after she pleaded guilty to being an accessory after the fact to possession of a firearm.

Dunbar, who pleaded guilty to possession, was given a two-year suspended sentence after the judge deemed the circumstances in this case did qualify as ‘exceptional’.

Fosuhene, who represented Terry in court, said it was a relief that neither had been made to serve custodial sentences for a situation that was almost entirely out of their hands. But she said it was unsatisfactory that either had been charged at all and that they now have criminal records.

Of further and more immediate concern is the question of how an offence like this would be treated under the new legislation. The change to the ‘exceptional circumstances’ clause suggests the judge would have to hand down an eight-year term of imprisonment, no matter what.

“What this does is it totally removes judicial discretion,” said Fosuhene.

She argues the ‘exceptional circumstances’ clause was already too subjective, but the amendment takes it to the point where the court’s hands are tied.

“No one is saying guns are not a problem, and if you are not supposed to have them you are not supposed to have them, but there should be room to consider each case on its merits,” she said.

“I would suggest legislators think very carefully over what they do about that exceptional circumstances provision.”

The Compass has sought clarity from the Attorney General’s Office on the intent and meaning of the changes but has not received a response.

Deadly trade: Spotlight on guns and drugs

• Disorganised crime: Chancers, freelancers and opportunists gambling on the Jamaica ganja run
• The journey of a gun: The trafficking networks that arm Cayman’s gangs
• Interactive: How firearms reach Cayman
• American guns, Caymanian victims
• ‘Merchants of Evil’ – Criminal brokers quietly profiting from bloodshed in Cayman

Balancing act

Faced with community concerns over gun crime, other jurisdictions have grappled with the same issues.

Michael Bromby, a senior lecturer at the Truman Bodden Law School, said mandatory minimum sentences were often an important tool for politicians to provide a deterrent.

But similar legislation in other jurisdictions has faced human rights challenges.

In one case in the UK, a memorabilia collector who inadvertently purchased a loaded weapon thinking he was buying a replica, had his sentence reduced from the mandatory minimum of five years to 12 months on the grounds of ‘exceptional circumstances’.

In Ireland, lawmakers removed a similar provision after determining it was being “used too frequently and was undermining the deterrent message,” Bromby said.

However, the country’s Supreme Court overturned that decision following an appeal.

Balancing the deterrent message with judicial flexibility is a tricky question, says Bromby, but the case law suggests some discretion should be left to the courts.

‘Give people a reason not to carry guns’

There’s another good reason to think twice about upping mandatory minimum penalties for gun crime, says Fosuhene.

“The reality is they don’t really work,” she said, arguing that there was even potential for such hard and fast rules to increase crime, for example if someone on the cusp of being caught with a weapon decided to take extreme measures to avoid arrest.

She argues for more focus on community programmes, rehabilitation and outreach instead of tougher penalties.

“People still have guns and they still commit firearms offences. The mandatory minimum for murder is life and that doesn’t act as a deterrent. It just doesn’t work that way.

“You need to reach people way before they get to that point.

“I understand that is easier said than done but you have to at least make an effort.

“If you don’t want people to carry guns you have to give them a reason not to.”

Fosuhene also questioned why the wider defence bar, including lawyers like herself who deal every day with gun-crime cases, were not consulted as the bill was being drafted.

‘Who does this help?’

Ebanks believes he is a prime example of why mandatory minimum sentences are a blunt and ineffective tool.

Two years into a seven-year sentence, the 43-year-old worries about his family’s future.

He feels the sentence was harsh on all of them and has done nothing to make the community safer.

“I was earning good money and taking care of my family. I was the only provider of my household.

“Now the government is paying to support me, my wife and my son as opposed to me getting the chance to pay back the community for a mistake.

“How does that make sense?”